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HomeMy WebLinkAboutCC Resolution 13659 (Legal Services; Burke, Williams & Sorensen)RESOLUTION NO. 13659 RESOLUTION AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT NOT TO EXCEED $40,000 WITH BURKE, WILLIAMS & SORENSEN, LLP TO PROVIDE LEGAL SERVICES WHEREAS the CITY needs from time to time an outside contractor to provide legal services including, but not limited to employee relations, including labor negotiations; contract interpretation; and general guidance on personnel and employment issues; and WHEREAS the CITY needs from time to time the services of an outside contractor to gather facts and make factual findings during personnel matters, which the CITY will use to assess the appropriate course of action; and WHEREAS, the CITY has contracted with Burke, Williams & Sorensen, LLP for assistance with personnel matters in the past, and recognizes that such law firm is trained, experienced and otherwise qualified to provide the services as outlined in the attached agreement. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of San Rafael hereby authorizes the City Manager to execute an Agreement for Professional Services between the City of San Rafael and Burke, Williams & Sorensen, LLP for employment law services in an amount not to exceed $40,000 and in a form approved by the City Attorney. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday, the 16th of December 2013, by the following vote, to wit: AYES: COUNCIL MEMBERS: Bushey, Colin, McCullough & Vice -Mayor Connolly NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: Mayor Phillips ESTHER C. BEIRNE, City Clerk AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND BURKE, WILLIAMS & SORENSEN, LLP TO PROVIDE LEGAL SERVICES This Agreement is made and entered into this 16th day of December 2013, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and BURKE, WILLIAMS & SORENSEN, LLP (hereinafter "CONTRACTOR"). AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: PROJECT COORDINATION. A. CITY. The Human Resources Director shall be the representative of the CITY for all purposes under this Agreement. The Human Resources Director is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Donald Velez is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties associated with legal services including, but not limited to: employee relations. including labor negotiations; contract interpretation; and general guidance on personnel and employment issues. 3. DUTIES OF CITY. CITY shall compensate CONTRACTOR as provided in Paragraph 4. 4. COMPENSATION. For the CONTRACTOR's full performance of the duties and services described herein, CITY shall pay CONTRACTOR for the hours of work based on the rates as outlined in Exhibit A in an amount not exceed $40,000, including expenses. Expenses will include mileage, postage and copy charges. Payment will be made upon receipt by PROJECT ! 1I NAGER of itemized invoices submitted by CONTRACTOR. 5. TERM OF AGREEMENT. This agreement is effective December 16, 2013, ongoing and may be modified by mutual agreement of the parties. This agreement shall be terminable by either party upon thirty (30) days written notice. OAK 44849-198-2-4663 v1 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. During the term of this Agreement. CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury. or property damage. OAK 44849-1932-4663 v 1 2 2. An automobile liability insurance policy, for owned, non -owned, and hired vehicles, in the minimum amount of one million ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million $1,000,000) dollars to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. B. The insurance coverage required of the CONTRACTOR in Subparagraph A above, shall also meet the following requirements: I . Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury. 2. Except for professional liability insurance, the insurance policies shall provide in their text or shall be specifically endorsed to name the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies, and to provide that the insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution. 3. CONTRACTOR shall provide to City's Project Manager, (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) text from the insurance policies or the endorsements as specified in Subparagraph B(2). 4. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to City's Project Manager. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The insurance shall be approved as to form and sufficiency by PROJECTMANAGER and the City Attorney. C. If it employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations. and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. D. Any deductibles or self-insured retentions in CONTRACTOR's insurance policy must be declared to and approved by the City's Risk Manager and the City Attorney. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing OAK 44849-1982-4663 v1 3 payment of losses and related investigations, claims administration, attorney's fees and defense expenses. 11. INDEMNIFICATION. A. Except as provided in Paragraph B., CONTRACTOR shall indemnify, release, defend and hold harmless CITY, its officers, and employees, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees, arising out of or resulting in any way, in whole or in part, from any acts or omissions, intentional or negligent, of CONTRACTOR or CONTRACTOR's officers, agents and employees in the performance of their duties and obligations under this Agreement. B. Where the services to be provided by CONTRACTOR under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend and hold harmless CITY, its officers, and employees, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees, that arises out of, pertains to, or relates to the negligence, recklessness, or willful misconduct of CONTRACTOR in the performance of its duties and obligations under this Agreement. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement. to the other party. Orf: 9484()-1982-4663 v 1 4 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Human Resources Director City of San Rafael 1400 Fifth Ave. (P.O. Box 151560) San Rafael, CA 94915-1560 TO CONTRACTOR: Donald Velez, Partner Burke, Williams & Sorensen, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. OAK 44849-1982-4663 vt 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL . � �6 >'y t . ,• � � ` } n ,tri' *; NANCY MALE, City Manager OAK 44849-1982-466 %,1 6 CONTRACTOR Donald Velez. Partner ATTEST: ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEM, 0ity, Attorfiey OAK #4849-1982-4663 v 1 EXHIBIT A TO LEGAL SERVICES AGREEMENT BETWEEN CITY OF SAN RAFAEL AND BURKE, WILLIAMS, AND SORENSEN, LLP Hourly rates for attorneys: Donald Velez, Partner - $275 per hour Partners - $275 per hour Associates - $225 per hour EXHIBIT A CITY OF SAN RAFAEL ROUTING SLIP / APPROVAL FORM INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT, ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. SRRA / SRCC AGENDA ITEM NO. 3. h DATE OF MEETING: December 16, 2013 FROM: Jim Schutz, Assistant City Manager DEPARTMENT: Human Resources / Management Services DATE: December 9, 2013 TITLE OF DOCUMENT: RESOLUTION AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT NOT TO EXCEED $40,000 WITH BURKE, WILLIAMS & SORENSEN, LLP TO PROVIDE LEGAL SERVICES D partmnt Hea (signture) ..c ie�cylr *kk k�r* Yink itit* *fie* ink9r k�r�e *kk *�t�r 7kY4r Y4ck 1r�rk kY4e �rk�lc kiek (LOWER HALF OF FORM FOR APPROVALS ONLY) APPROVED AS COUNCIL / AGENCY APPROVED AS TO FORM: AGENDA ITEM: City Manager (signature) City Attorney (signature) NOT APPROVED REMARKS: